United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI Chief United States District Judge.
the Court is Defendant Katherine Dossey's Motion in
Limine Re: Testimony Defining “The Applicable
Law” [Doc. No. 43], which Defendant James Ferris
adopted [Doc. Nos. 71, 75]. The United States has responded
[Doc. Nos. 68, 76]. The matter is fully briefed and at issue.
Dossey, a licensed pharmacist, and Dr. Ferris, a licensed
physician, (“Defendants”) are charged in a
103-count Indictment with distributing controlled substances
outside the usual course of professional medical practice, in
violation of 21 U.S.C. § 841(a)(1), and Medicare fraud,
in violation of 18 U.S.C. § 1347. [Doc. No. 1]. The
United States anticipates offering the testimony of expert
witnesses who will opine that Defendants' conduct fell
outside the usual course of professional practice. The expert
witnesses are expected to refer “both directly and
indirectly” to the statutory and regulatory standards
that govern professional practice for physicians and
pharmacists. [Doc. No. 68 at 2]. Defendants seek to preclude
any witness from testifying or giving an opinion concerning
“the applicable law.” [Doc. No. 43 at 1].
Defendants assert that such testimony invades the province of
the Court and the jury, and is improper under Fed.R.Evid. 403
and Fed.R.Evid. 701 through 705, addressing opinion and
the Federal Rules of Evidence do not explicitly authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to
mange the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n. 4 (1984). As such,
“[t]he purpose of a motion in limine is to aid the
trial process by enabling the Court ‘to rule in advance
of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.'”
Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d
1201, 1208 (D. Kan. 2008) (quoting Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996)).
these streamlining benefits, “a court is almost always
better situated during the actual trial to assess the value
and utility of evidence.” Wilkins v. Kmart
Corp., 487 F.Supp.2d 1216, 1218 (D. Kan. 2007).
“Consequently, a court should reserve its rulings for
those instances when the evidence plainly is
‘inadmissible on all potential grounds' …
and it should typically defer rulings on relevancy and unfair
prejudice objections until trial when the factual context is
developed[.]” Id. (citations omitted); see
also Hawthorne Partners v. AT&T Tech., Inc., 831
F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence
meets this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper
context.”). Further, “the district court may
change its ruling at any time for whatever reason it deems
appropriate.” Jones v. Stotts, 59 F.3d 143,
146 (10th Cir. 1995); see also Luce, 469
U.S. at 41 (“The ruling is subject to change when the
case unfolds …. Indeed even if nothing unexpected
happens at trial, the district judge is free, in the exercise
of sound judicial discretion, to alter a previous in limine
are charged in Counts 1-62 with knowingly and intentionally
distributing and dispensing and causing the distribution and
dispensing of Schedule II controlled substances outside the
usual course of professional medical practice, in violation
of 21 U.S.C. § 841(a)(1). [Doc. No. 1]. To prescribe
controlled substances, a doctor must be authorized “to
prescribe controlled substances by the jurisdiction in which
he is licensed to practice his profession” and he must
have a registration number issued by the Drug Enforcement
Administration. 21 C.F.R. § 1306.03(a). Further, under
federal regulations, a “prescription for a controlled
substance to be effective must be issued for a legitimate
medical purpose by an individual practitioner acting in the
usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a). “[A] corresponding responsibility
rests with the pharmacist who fills the prescription.”
Id. An order purporting to be a prescription that is
not issued in the usual course of professional treatment is
not a valid prescription, and “the person knowingly
filling such a purported prescription, as well as the person
issuing it, shall be subject to the penalties provided for
violations of the provisions of law relating to controlled
§ 841, the Supreme Court in United States v.
Moore, 423 U.S. 122, 124 (1975) held that registered
physicians can violate this section when their activities
fall outside the usual course of professional practice.
“[O]nly lawful acts of registrants are exempted”
from prosecution under § 841. Id. at 130;
see also United States v. Nelson, 383 F.3d 1227,
1231-1232 (10th Cir. 2004) (“A practitioner
has unlawfully distributed a controlled substance if she
prescribes the substance either outside the usual course of
medical practice or without a legitimate medical
purpose.”). Specifically, the United States must prove
that (1) Defendants distributed or dispensed controlled
substances; (2) Defendants acted knowingly and intentionally;
and (3) Defendants' actions were not for legitimate
medical purposes in the usual course of professional medical
practice or were beyond the bounds of medical practice.
United States v. Schneider, 704 F.3d 1287, 1295
(10th Cir. 2013).
assist the jury in understanding the evidence, the United
States intends to call expert witnesses to testify. Citing to
Fed.R.Evid. 701 through 705, Defendants ask the Court to
exclude such expert testimony. The Tenth Circuit addressed
these arguments in Schneider, which presents similar
facts to the case at bar. Schneider, 704 F.3d at
Schneider was a doctor of osteopathic medicine, and his wife
was a licensed practical nurse. Id. at 1290. They
owned and operated a pain management clinic and prescribed
controlled substances. Id. They were convicted of
unlawful drug distribution and health care fraud.
Id. at 1292. On appeal, they argued that the
district court improperly allowed expert witnesses to testify
that Dr. Schneider was guilty of the crimes charged, as to
legal opinions, and about Dr. Schneider's state of mind.
Id. at 1293. Finding no error in the admission of
the expert testimony, the Tenth Circuit emphasized that the
evidence rules “allow an expert to opine on an
‘ultimate issue' to be decided by the trier of
fact” as long as the expert does not “‘tell
the jury what result it should reach.'”
Id. (quoting United States v. Dazey, 403
F.3d 1147, 1171 (10th Cir. 2005) and
citing Fed. R. Evid. 704(a)). The expert witnesses
in Schneider did not tell the jury to reach a
particular verdict, but explained in detail their
observations from the evidence and summarized their findings.
Schneider, 704 F.3d at 1293-1294. Such testimony was
properly admitted. Id. at 1294.
Schneiders also argued that the expert witnesses
impermissibly offered legal conclusions that Dr. Schneider
engaged in conduct outside the ordinary course of medical
practice. Id. Prior to trial, the Schneiders had
moved in limine to exclude the testimony, and the trial judge
denied the motion. Id. The Tenth Circuit noted that
experts may refer “‘to the law in expressing
[their] opinion.'” Id. (quoting United
States v. Bedford, 536 F.3d 1148, 1158 (10th
Cir. 2008)). The use of the phrase “other than
legitimate medical purposes” is not a specialized legal
term; thus, the expert does not usurp the jury's function
by using that phrase in his testimony. Schneider,
704 F.3d at 1294.
Defendants' motion quotes extensively from Specht v.
Jensen, 853 F.2d 805 (10th Cir. 1988), they
omit the most relevant and distinguishing excerpts from that
case. Specht was a § 1983 civil rights action
in which the plaintiffs sought to recover for the
defendants' alleged unlawful searches of the
plaintiffs' home and office. Id. at 806. Over
the defendants' objection, the plaintiffs called an
attorney to testify who concluded that there had been no
consent given for the searches and the searches were illegal.
Id. at 807. On appeal, the Tenth Circuit concluded
that the attorney's testimony was beyond the scope of the
Federal Rules of Evidence and thus inadmissible. Id.
at 806. The Tenth Circuit, however, was careful to draw a
distinction between an attorney's testimony and testimony
of any other expert witness. Id. at 809
(“There is a significant difference between an attorney
who states ...